ML18003B051
| ML18003B051 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 02/20/1985 |
| From: | Bright G, Carpenter J, Foreman H, Joseph Kelly Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#185-677 82-472-03-OL, 82-472-3-OL, LBP-85-05, LBP-85-5, OL, NUDOCS 8502220112 | |
| Download: ML18003B051 (64) | |
Text
Enclosure LBP'%-5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COYBISSION FEH 20 P4'47 ATOMIC SAFETY AND LICENSING BOARD OFF)~- --..-.1;-...,
BOCNE7.1NG'/k St~Vlf:f BRANCH Before Administrative Judges:
James L. Kelley, Chairman Dr. James H. Carpenter, Member Glenn 0. Bright, Member
. ggy~e Dr. Harry Foreman, Alternate Member In the Matter of
)
)
CAROLINA POWER 5 LIGHT COMPANY
)
and
)
NORTH CAROLINA EASTERN MUNICIPAL
)
POWER AGENCY
)
)
(Shearon Harris Nuclear Power
)
Plant)
)
)
Docket Nos.
50-400-OL (ASLBP No. 82-472-03 OL)
~
PARTIAL INITIAL DECISION ON ENVIRONtlENTAL CONTENTIONS Thomas A. Baxter and Deborah B. Bauser, Washington, D.C., and Richard E.
- Jones, Samantha Francis Fl nn and H. Hill Carrow, Raleigh, North Carolina, for the Applicants Carolina Power
& Light Company., et al.
Wells Eddleman, Durham, North Carolina, pro se.
John Runkle, Chapel Hill, North Carolina, for Conservation Council of I
Charles A. Barth and Janice E. Moore for the Nuclear Regulatory Commission Staff.
ppR <
NRC Staff Panel on Contention SF(1) at 12 (citing "Industrial Source Complex (ISC)
Dispersion tlodeI User's Guide," EPA-450/4-79-030, U.S.
Environmental Protection
- Agency, Research Triangle Park, N.C.
( 1979)).
The concentrations are computed at different receptor locations for each hour over the simulated time period using the input meteorological
- data, stack and emission parameters, and receptor elevations.
The basic model assumes steady-state movement of the atmospheric pollutants in the downwind direction with Gaussian horizontal and vertical cross-wind depersion.
The vertical dispersion is limited by the height of the mixing layer given as a meteorological input.
emission source at the center.
The circular areas were divided into 360
.- grid cells.
Particulate concentrations for each hour werj computed. with the ISC model for receptors at the geographic centroid of each of the 360 grid cells surrounding each power plant.
Id. at 12.
For long-term
{annual) particulate concentration
- levels, such as those calculated
- here, the ISC model predictions are quite accurate.
Id. at 13.
15.
The results of Dr. Habegger's
- analysis, using both annual and maximum 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> averages, were as follows:
For the Clifty power plant, the computed maximum increment at any of the 360 receptor points was 0.022 ug/m for the annual average and 0.70 ug/m for the maximum 3
3 24-hour average.
For the Kyger plant, the maximum annual average was 0.013 ug/m
, and the 24-hour maximum was 0.71 ug/m For the Joppa
- plant, the maximum annual average was 0.038 ug/m
, and the 24-hour 3
maximum was 1.3 ug/m These are conservative estimates since they give no credit for particle removal bJ~ deposition.
16.
The health ef ects of a.mospheric particles" on exposed populations are dependent on the size distribution of the particles.
In
- general, smaller size particles are potentially more harmful, largely because of deeper penetration into the lungs. 'd. at 6.
Table S-3 doe's not provide data on particle size distribution.
However, using the data on which Table S-3 was based, and making a number of conservative assumptions about particulate emissions and controls, Dr. Habegger conservatively calculated that 790 MT/yr of the 1,154 i'/yr of particulate emissions are less than 2.5 um, and 364 AT/yr of emissions are in the 2.5 to 15 um size range.
Id. at 9.
17.
Using the annual average particulate concentrations,
-- -- Or. Habegger also calculated the total computed populatian exposure.ia" the coal plant vicinities.
These exposures are 5,567 persons-ug/m in 3
the 50-mile vicinity of Joppa, 5,625 for Clifty, and 2,174 for Kyger.
The total computed population exposure using the maximum 24-hour concentration is 100,800 persons-ug/m in the 50-mile vicinity of Joppa, 3
103,000 for Clifty, and 47,200 for Kyger.
Id. at 16-17.
The population-weighted average (sum of exposures divided by population) of the incremental annual average particulate concentration is 0.011 ug/m for Joppa, 0.0038 for Clifty, and 0.0025 for Kyger.
The population-weighted average of maximum incremental 24-hour concentration is 0.19 ug/m for Joppa, 0.071 for Clifty, and 0.054 for Kyger.
Id. at 17.
3 These figures are consistent with Dr. Hamilton's estimated average daytime particulate concentration level of 0.036 to 0.042 ug/m 3
Health Effects of Calculated
~'.Particulate Concentration Levels 18.
Utilizing the particulate concentration levels calculated by Or. Hamilton and by Dr. Habegger, health effects attributable to 1,154 NT/yr can be estimated.
Or. Hamilton utilized both a comparative and a quantitative method to assess health impacts.
Hamilton at 8-16.
Dr. Hamilton's quantitative method is a simplified version of the method used by Dr. Ozkaynak in the Staff's analysis.
Tr. 1,590-91 (Habegger}.
19.
Characterizing the prototype pulverized coal-fired plant (the basis for the Table S-3 figure of 1, 154 MT/yr) as essentially "uncontrolled," Or. Hamilton estimated the concentration of respirable
'or thoracic particles (TP) in this mass of total particles.
From.such an uncontrolled plant, TP constitutes only about 40 percent of the mass of the total particles.
Hamilton at 8.
Larger particles tend to be deposited in the nose or pharynx and do not reach the lung.
Thus, only 40 percent of the particles released are potentially damaging to health.
Dr. Hamilton then calculated that the concentration of TP that would penetrate the thoracic region would be about 0.014-017 ug/m Id. at 3
8-9.
For perspective, Or. Hamilton compared this concentration of TP (0.014-0.017 ug/m
) with the EPA's estimate of potentially injurious concentrations of TP'.
In a critical review of the available scientific and technical information most relevant to primary (health) National Ambient Air guality Standards (NAA(S) for particulate matter, EPA found
- that, "Based on a staff assessment of the long-term epidemiological
- data, the range of annual TP levels of interest are 55 to 110
[micrograms per cubic meter]."
20.
- Thus, EPA has concluded that from both short-and long-term exposures to particles, the "bottom line" or. lowest level of TP at which 3
there may be some risk of health effects is approximately 55 ug/m Hamil.on at 10.
As stated
- above, the concentration of such particles in the atmosphere, assuming a reasonable distribution of the entire 1,154 MT in a 50-mile radius around a single uncontrolled pulverized coal plant, would be 0.014-0.017 ug/m
. This means that even if the 1,154 MT were all distributed by a single coal plant in one place, which obviously is not the case since three, different gaseous diffusion plants
are used in the enrichment process,
.he concentration would be approximately 3,000 times smaller than the minimum concentration having some risk of symptomatic effects.
While the 0.014-0.017 ug/m of TP is 3
an incremental concentration to a pre-existing background concentration of TP, there is no reason to doubt that its proportional responsibility for any biological effect is equally miniscule.
See Hamilton at 10; Tr. 1,364 (Hamilton).
Thus, Dr. Hamilton's comparative analysis suggests virtually no health impacts from 1,154 MT/yr of coal particles.
21.
Or. Hamilton performed a numerical assessment of health effects of coal emissions attributable to the Shearon Harris plant's uranium fuel cycle needs.
This calculated risk relied upon a damage function for fine particles developed recently by the Harvard University Energy and Environmental Policy Center, i.e., the group that is headed by Dr. Ozkaynak.
See "Analysis of Health Effects Resulting from Population Exposures to Ambient Particulate Matter" October 1983 ("1983 Harvard Report" ), prepared for the Health and Environmental Risk Analysis Program of the U.S.
Oepartment of Energy.
This fine par.icle damage function is a surrogate for the health effects of all air pollution.
The damage function encompasses health effects that may in fact not be caused merely by coal particles but, rather, by S02 or other pollutants.
Tr. 1,224-25, 1,233-37 (Hamilton); Tr. 1,391-95 (Ozkaynak).
Thus, for example, this risk coefficient includes health effects (including unknown effects) that may be caused by trace metals in the coal particles--an issue of particular concern to Mr. Eddleman.
Tr. 1,234, 1,323, 1,326, 1,350-51 (Hamilton); Tr. 1,384-86 (Ozkaynak);
Tr. 1,419-20 (Habegger).
22.
In his calculation, Or. Hamilton used a damage function for respirable particles in a linear, non-threshold way, thereby conservatively assuming that even the smallest incremental particulate dose has an incremental health effect.
Tr. 1,238 (Hamilton); Hamilton at 11.
This linearity assumption is particularly conservative in view of the fact that one of the two schools of thought on this subject among the scientific community believes that at ambient levels, much less the miniscule increment to ambient levels under consideration
- here, the health effects are zero.
Tr. 1,229, 1,238 (Hamilton); Tr. 1,577-78 (Ozkaynak).
23.
The 1983 Harvard Report recommends, for quantitative risk assessment, use of only a fine particles (FP) risk coefficient, or particles smaller than 2.5 micrometers.
See 1983 Harvard Report (Staff Ex. 3) at page 8 and Table 1,
page 5.
FP represent a small portion of the thoracic particles (TP) previously described.
FP are about 10 percent of the total particulate emissions from an uncontrolled pulverized coal-burning power plant.'amilton at 12.
-The FP damage function, which is 1.3
+ 0.6 deaths/year/10 persons per ug/m FP, is 5
3 derived from available cross-sectional mortality analyses.
Hamilton at 12 (citing 1983 Harvard Report (Staff Ex. 3) at 45-50).
24.
Using this damage function and the 10 percent FP, Or. Hamilton calculated the expected excess deaths per year from population exposure to 1,154 i~lT/yr.otal particulate emissions around each of the coal
plants.
Hamilton, Table 3.
These e timated excess deaths should be compared with the expected deaths from all causes in the population around each of these plants.
In summary, the estimated excess deaths from population exposure to 1,154 NT/yr total particulate emissions C
range from 0.001 to 0.13.
This risk is indistinguishable from zero against the background of expected deaths from all causes, which ranges from 2,400 to 11,000 at the same five areas studied.
The upper limit of estimated expected deaths from particulate exposure corresponds to about one one-thousandth of one percent of the mortality rate.
Hamilton at 12-13, Table 3.
25.
Dr. Ozkaynak performed a similar but much more complex analysis.
Using the results of the dispersion modeling study and the population data described
- above, and taking into consideration the socio-demographic information
(~e
, age,
- race, education, etc.}
available from the 1980 census, Dr. Ozkaynak calculated both mortality and morbidity health effects attributable to l,154 NT/yr.
HRC Staff Panel at 19.
Chronic as well as acute effects were considered.
Acute (respiratory) morbidity indicates short-term illness such as pneumonia, influenza and common coughs, while chronic (respiratory) morbidity indicates persistent, Iong-term illness such as chronic bronchitis, bronchial asthma or other obstructive lung disease.
Id. at L9, unnumbered footnote.
These calculations relied primary upon airborne particulate risk coefficients developed by the Harvard group under Or. Ozkaynak's direction.
Id. at 22-24, 27, 28-29.
~ '
V
0'44-26.
There are a number of factors which contribute to the
'uncertainties of the Staff's morbidity and mortality risk estimation.
The health effect calculations done by Dr. Habegger and Or. Ozkaynak use 95K confidence limits.
Tr. 1,447, 1,449 (Ozkaynak, Habegger);
NRC Staff Panel at Table 3.
This means that one can have 95K confidence that the actual effects of 1,154 YiT/yr fall within the (large) bounds of uncertainty or error band stated in the testimony.
Tr. 1,506 (Habegger).
Thus, the analysis subsumes a number of issues of concern to Mr. Eddleman, such as whether the calculation adequately considers coefficient of haze (see Tr. 1,516-20 (Ozkaynak, Habegger )), the different compositions of particles in different areas (see,
~e.
Tr. 1,410, 1,418-20 (Habegger)),
and failure to make progress in identified areas of research (Tr. 1,506 (Habegger)).
Stated another way, all uncertainties were captured in the analysis through the use of a range of results which encompasses the impact of these uncertainties.
See Tr. 1,449 (Habegger).
27.
In summary, for the area surrounding the Joppa and Clifty facilities, Dr. Ozkaynak estimates the incremental excess emergency room visits for respiratory disc'ase would be about 3 cases every two years (1.4 per year).
In contrast, the expected number of. incremental annual acute -respiratory disease incidents for the same areas are about 30 per vear.
In the vicinity of the Kyger facility, the projected risks are about one-third the values predicted for the areas surrounding the Joppa and Clifty plants (0.5 per year excess emergency room visits for respiratory disease and 11 acute respiratory disease incidents per year).
For all of these projections, the lower-bound estimate always
includes zero or no incremental health effects.
The upper.-bound estimate is either twice or 1.5 times the most likely or central estimates presented.
The most likely annual mortality risks associated with emissions from either the Joppa or the Clifty plants are less than 0.09 per year within the 50-mile radius of each plant.
The likely mortality risks near the Kyger facility, on the other hand, can be expected to be less than 0.03.
NRC Staff Panel at 31, 34 and Tables 2
and 3.
These figures are consistent with Dr. Hamilton's estimated range of excess deaths of O.G01 to 0.13.
See ll 24, soars.
28.
Dr. Hamilton performed an alternative calculation of the
'health (mortality) effects of coal particulate emissions attributable to the uranium fuel cycle by assessing the health risk for the entire Uni'ted States due to the long range transport of these particles.
Ba'sed on the Brookhaven National Laboratory's Biomedical and Environmental e
Assessment Division's matrix results, Or. Hamilton estimated
.hat the I
average total U.S.
exposure to fine particles from al I coal power plants is 90 person-ug/m per tlT emissions.
Using the FP damage function cited
- above, the calculated additional deaths in the entire U.S. population from coal particles associated with the uranium fuel cycle would be Oe13, with a 95 percent statistical range of 0.013-0.26.
In the entire, U.S., roughly 2 million die annually from all causes.
Hamilton at 12; Tr. 1,279-81 {Hamilton).
Assessment of the Significance of the Pro ected Health Effects of 1
154 MT/ r 29.
The Applicant and the Staff witnesses reached the same conclusion about the significance of the health effects they determined to be attributable to the 1,154 MT/yr of coal particulates specified in Table S-3.
30.
Conservative calculations of the upper limit of health risk
~hich may be associated with the 1,154 MT/yr figure.indicate that atmospheric concentrations of the amount of particles attributable to a 45 MWe coal-fired plant reasonably distributed over a 50-mile radius would be 3,000 times smaller than, the minimum concentration determined by the EPA to present some health risk.
Conservative calculations of the upper limits of risk of those particles distributed among the populations around the five fossil plants supplying the uranium enrichment facilities indicate that, at most, a tiny fraction of a
- death, each year those plants are in operation, could be at ributed to the particulate emissions.
This risk is extremelv small, par.icularly when compared to the deaths one would expect in those same populations from all causes.
This upper limit of risk is confirmed by an alternative calculation of the impact of the Table S-3 particulates over the population of the entire United States.
Moreover, these calculations assume that exposure from particles is long standing; otherwise, the calculated impact is inapplicable.
Thus, in su+nary, it is the Board's opinion that the Staff succinctly and. correctly concludes in the FES that there is a miniscule incremental environmental impact from the coal particles identified in Table S-3.
(Ham'il'ton);
Mr. Eddleman's Pro osed Findings 31.
Mr. Eddleman in his Proposed Findings 10-12 contends that one can arrive at an upper limit of deaths associated with the 1, 154 M/T of coa'] particulates resulting from operation of the Harris facility by the following equation:
by taking the fraction of emissions of Table S-3 air pollutants nationwide, which is represented by the Harris plant fuel cycle (0.02% or 2/10,000, Staff Exhibit 1 p. C-2) and multiplying 'it by Dr. Hamilton's upper limit of total deaths due to air pollution
( 100,000 a year, see finding 7A, supra, Tr. 1309-10) times a 40 year plant operating life (as set in Staff Exhibit I for radioactive effluent estimates).
This equation produces a result of approximately SGG deaths.
Mr.
Eddleman corcedes that the SGO number is "conservative" because "not all deaths are solely due to particulates."
There are at least two other It appears that there is yet another conservatism included in these calculations which, if recognized, would make this "miniscule effect" even smaller.
It seems likely that the Harris facility will take the place of several of the Applicants existing coal-fired plants some substantial part of the time.
See pp.53-57, below.
When that happens, presumably there will be a net decrease in coal particles being released into the atmosphere.
This approach could be viewed as an impermissible attack on the Table S-3 rule.
We need not decide that question on this record, but we think it useful to take note of what is probably going to happen in the real world.
deficiencies in Nr. Eddleman's estimate which further limit its validity.
- First, as Nr. Eddleman himself notes in a subsequent proposed finding (17), only abou't two-thirds of the coal particulates in the atmosphere are respirable.
Nore fundamentally, there is no valid basis for relating Dr. Hamilton's offhand high estimate of 100,000 deaths, due to all kinds of air pollution and based on a sulfate damage function, to the Staff's
.02K estimate of the amount by which the quantity of coal particulates in the United States from certain sources would be increased.
Coal particulates are only one component of 'the total quantity of air pollutants nationwide.
In view of these several r
deficiencies in the manner of its derivation, the "800 deaths" cost estimate is not useful in estimating the risk from the coal particulate exposure.
32.
In his proposed inding 15, Nr. Eddleman is concerned that the calculations of health effects were limited to the populations within a fifty-mile radius of the emission sites.
He suggests that health effects outside of a fi ty mile radius should be considered.
The Board disagrees.
The fiftymile radius encompasses the area most affected by the coal particulates Use of that radius amounts to a "worst case" analysis and places the particulate lung deposition phenomonon in perspective.
Even in those limited areas, the calculated health effects are very small.
33.
In his proposed findings 15-18, Nr. Eddleman uses a variation of Dr. Hamilton's particulate exposure formula, along with the Harvard fine particles damage function to estimate deaths
.o be expected from
~ =
~ I
- 'E
'I ~
the 1,154 M/T of coal particulates associated with normal operation of Shearon Harris.
In his use of similar formulas, Dr. Hamilton had arrived at an estimated number of deaths to be expected annually in the United States from those particulates i.e., 0. 13, with a 95 percent statistical range of 0.013 - 0.26.
For perspective, Dr.. Hamilton notes that "in the entire United States roughly 2 million die annually from all causes."
In other words, the risk of death from the particulates'n any vear is on the order of I in 20 million.
Mr. Eddleman, in his calculations, arrived at a range of deaths from 32 to 180 over the forty-year operating life of the plant.
However, Mr. Eddleman used a
damage coefficient of 2.3 -deaths per 10 persons per microgram/m year 5
3 of exposure (from Staff 'testimony, ff. Tr.
1380 at 33) rather. than the value of 1.3 that Hamilton used.
And, as Mr. Eddleman acknowledges, his estimate "may be too high" since he omits the part of the computat on that reflects the fact that the gross mass emission value in Table S-3 is not appropriate for use with the damage coefficient which applies only to the concentration of "fine particles."
Neglect o
this factor makes Mr. Eddleman's estimate unrealistically high.
34.
We recognize that consideration of the larger value for the damage coefficient and the 40 year time period might produce a
statistical estimate of roughly 10 to 70 deaths, depending on what fraction of the Table S-3 value is material with diameters less than 2.5 microns.
From a statistical perspective, the 80 million deaths that can be anticipated in the United States population of roughly 240 million people over the next forty years correspords to a risk of death o
1 in 3 or 0.33.
The estimate of 10 to 70 deaths over forty years corresponds to a risk increment of 0.00000004 to 0.0000003.
We find that such postulated health effects do not pose an undue risk to the population of the United States, and that, in fact, Mr. Eddleman's mortality estimates are subsumed in the error bounds of the mortality calculations for the United States.
V.
MR.
EDDLEMAN'S PETITION SEEKING WAIVER OF THE NEED FOR PO!lER RULE Introduction In the early stages of this case, Mr. Eddleman filed numerous contentions
- seeking, in various ways, to challenge the Applicants'eed for power projections and to.,show that certain alternative sources of
'ower would be economically and environmentally preferable to the Shearon Harris facility.
The Commission has adopted a rule which states that "Presiding officers shall not adm'.'t contentions proffered by any party corcerning need for power or alternative energy sources for the proposed plant in operating license hearings."
The Licensing Board held that Mr. Eddleman's contentions were barred by this "need for power rule", as it is commonly
- called, and rejected them on that basis.,
16 NRC 2069,
- 2092, 2099; 17 NRC 971.
Thereafter, Mr. Eddleman filed a petition and supporting affidavits under 10 CFR,5 2.758 seeking a waiver of the need for power rule in order to permit litigation of his contentions.
The Applicants and he NRC Staf filed responses in opposition to Mr. Eddleman's petition, and we authorized a reply to the responses.
We announced 15 some time ago our conclusion that the petition would have to be denied, saying that the formal order of denial, accompanied by a statement of our reasons, would be included in this Partial Initial Occision.
20 NRC
- 389, 424.
Our basic reason for denying the petition is that it fails to make the required showing that application of the need for power rule to
.his case would not serve the purposes for which the rule was adopted.
On the contrary, as discussed below, the purposes underlying the need for power rule fit this case precisely.
Standards and Procedures Governina Waiver of Rules Commission rules may not be attacked in an ad~udicatory proceeding involving initial licersing, such as this operating license proceeding.
10 CFR 3 2.758(a).
- However, a party may petition the Licensing Board for waiver o a rule on the sole oround that "special circumstances
. are such that application of the rule
. would no serve the purposes or which the rule
. was adopted."
Section 2.758(b).
The In addition, on March 7, 1984, Mr. Eddleman filed a motion to allow filing of an additional affidavit from another expert.
The Applicants and Staff opposed that motion, essentially on timeliness grounds.
Given our ruling on the petition, it makes no practical difference how we rule on this motion and we therefore deny it as moot.
On August 16, 1984, Mr. Eddleman filed a supplemental
- pleading, which we had authorized, concerning the effect of canceling Unit 2.
We have considered this supplement and it does not affect our conclusion.
~
~ petition must be supported by affidavits which are to "set forth with particularity the special circumstances alleged to justify the waiver
. requested."
If the Board determines that the petition and affidavits make a "grima facie" showing that the purposes of the ru1e would not be served under the circumstances, it is to certify to the Commission the question whether the rule should be waived.
Section 2.758(d').
If, on the other hand, the Board determines that no such m
showing has been made, it is to deny tffe petition.
Section 2.758(c).
Ba'ck round of the Need for P'ower Rule In proposing the need for power rule, the Commission recognized that a waiver under 10 CFR 6 2.758 might be obtained, for example, if it were shown that an "environmentally and economically superior alternative existed."
Need for Power and Alternative Enero Issues in 0 eratina License Proceedin s,
47 Fed.
Reg.
- 12940, 12,941.
However, in T
response to concerns that the quoted language might reopen the door to just the kind of contentions the rule was intended to exclude, the Commission emphasized that a party seeking waiver under Section 2.758 would still have to make a
prima"facie showing that application of the regulation to...
the proceeding would not serve the purpose for which the rule was adopted."
Id.
Our earlier order rejecting Nr. Eddleman's need for power and alternative source contentions sketched the background and purpose of the'eed for power rule.
Me repeat relevant portions below:
The NRC considers need for power and alternative energy sources (e.g.,
a coal plant) as part of its NEPA cost/benefit analysis at the construction permit stage for a nuclear power reactor.
See Niagara Mohawk Power Cor
. (Nine Mile Point Nuclear Station, Unit 2 1
NRC 347, 352-72
( 1975); Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), CLI-77-8, 5
NRC 503, 522 (1977). If need for power is not demonstrated, or if, for example, a different type of generating plant is preferable from cost and environmental standpoints, then not building any plant, or building that different type of plant, may be a realistic alternative.
Such an analys.is is practical before a nuclear power plant has been built.
Until about a year ago,
- however, need for power and alternative energy sources were also being litigated in some operating license
- cases, after construction of the nuclear reactor had been substantially completed.
The Commission became concerned that litigation of these issues at the operating license stage was a waste of time and resources, at least in the absence of exceptional circumstances.
As the Commission had determined years
- earlier, once a plant is built, there is little reason to consider the environmental and economic costs associated with construction.
At that point, those construction costs are so much water over the dam; in NEPA
- erms, they are "sunk."
See Pub1ic Service Co. of New Hampshire,
~su ra, at 530-36.
The Commission accordingly initiated a rulemaking to determine whether such issues should be barred at the operating license stage.
43 Fed.
Reg.
39940.
The rulemaking record, as subsequently developed, showed that a cons.ructed nuclear plant is vir.ually certain to be used as a base load plant, replacing other less efficient generating capacity, 'if not to meet increased demand.
It is also very likely to be preferable to any realistic alternative, given the nuclear plant's typically lower cost of operation compared to coal and oil.
17 NRC at 972.
In April 1982, in recognition of these realities and to promote efficiency in the licensing process, the Commission adopted fthe need for power rule.]
Positions of the Parties Mr. Eddleman puts forward an alternative to the Shearon Harris plant in four affidavits accompanying. his petition.
He argues tha.
an
~
~ alternative consisting of a combination of load shifting, energy
- storage, solar power, and conservation measures (ranging from more efficient home air conditioners to space heating by leaving water standing in the bathtub until it cools to room temperature) would be economically and environmentally superior to operating the Harris plant.
These arguments are elaborated in considerable detail.
Given the view we take 'of the question, it is unnecessary for us to do more than sketch the outlines of Mr. Eddleman's argument.
What is most significant for us is what the petition does not address i.e.,
the likelihood that the Harris plant will be used to displace existing baseload fossil fuel capacity if it is not needed to meet increased demand for power.
The Applicants focus their argument on the petition's failure to show that the purpose of the need for power rule would not be served by its application here.
They note that the petition does not dispute the necessity of all of their existing baseload fossil fuel capacit;, with the exception of one unit.
They argue that--
"LEjven assuming the viability of the alternative energy-saving measures proposed by Nr. Eddleman and the resulting decrease in system load projections, the premise of the Commission's regulation would dictate operation of the Harris units in order to displace existing fossil baseload generation (an alternative not even addressed in Nr.
Eddleman's petition).
The purpose served by the regulation would thus remain unaltered."
The Staff advances much the same argument.
Response
at 9.
However, the Staff devotes most of its response to disputing the merits of certain of Nr. Eddleman's claims of economic and environmental superiority for his alternative.
For example, it raises questions about the petitioner's computation of cost savings and seemingly optimistic predictions about people switching to more efficient air conditioners..
- Response, pp. 9-10.
As we next discuss, we believe that the Applicants'asic argument is not only sound but dispositive of the petition, without reference to.he range of economic and environmental i.ssues that might otherwise have to be addressed.
As to those
- issues, we merely note that many of the Staff's points appear to be well taken and we question whether the petition would have satisfied the "prima facie" showing requirement, had we reached those issues. 16 Discussion i41r.
Eddleman compares his alternative to operating Harris under four different scenarios, the principal variables being cancellation or 10 CFR 3 2.758 requires the petitioner to make a "prima facie"
- showing, a term it does not define.
Analogies to meanings given this phrase in civil litigation, particularly in association with jury trials, are not controlling here.
Cf. Consumers Power Co.
(f1idland Plant),
7 AEC 19, 32 (1974).
In the context of section 2.758, it seems reasonable to equate "prima facie" showing with "substantial" showing.
This would mean that the aff-;davits supporting a petition for waiver should present each element of the case for waiver in a persuasive manner and with adequate supporting facts from a qualified exper t, where appropriate.
tlr.
Eddleman's
Response
of September 30,
- 1983, suggests his view, with which we disagree, that mere assertions in an affidavit by a putative expert are, in and of themselves, sufficient for a "prima facie" showing and binding on the 8oard.
postponement of Unit 2 or Unit 1.
In each of these scenarios,
- however, operation of Harris or implementation of the alternative is considered only with reference to meeting increased demand or peak loads.
These scenarios do not take account of the fact as Mr. Eddleman himself points out that about two-thirds of the Applicants'xisting baseload plants (3500 of 5000 W) are coal-fired plants.
Presumably, these coal plants are of varying ages and efficiencies, both in terms of operating costs and effects on the environment.
It was just this situation that the Commission had in mind when it adopted the need for power of rule.
The Commission's statement bears repeating:
LA] constructed nuclear plant is virtually certain to be used as a base load plant, replacing other less efficient generating capacity, if not to meet increased demand.
It is also very likely to be preferable to any realistic alternative, given the nuclear plant's typically lower cost of operation compared to coal and oil.
Thus, the burden is on Mr. Eddleman, as the petitioner for a waiver, to show that the Harris facility would not bc used to displace existing coal-fired capacity.
Mr. Eddleman's petition does not address this probable use of the Harris facility.
To be sure, Mr. Eddleman appears to concede that a
nuclear plant would have some operating cost advantage over a coal plant.
Petition at 10.
And his argument suggests that the nuclear
- Indeed, Mr. Eddleman in his Response (at p.3) seems to question the relevance of the comparison, where he asserts that "It is illogical to combine Harris with the alternative to it.
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plant might also be environmentally preferable to an older coal plant,
.at least with respect to emissions.
Id. at 20-21.
At least the 18 petition makes no attempt at "prima facie" showings to the contrary.
Particularly given these cost and environmental advantages, it is apparent that Mr. Eddleman's alternative would only be considered as a
substitute for meeting incremental needs for power for peak loads.
In any event, such a conservation-oriented alternative cannot meet historic baseload needs to the extent that all coal-fired units of a heavily coal-dependent utility would be displaced by it. 19 In light of the foregoing discussion, Mr. Eddleman has not shown "special circumstances
. such that application of the [need for power] rule would not serve the purpose for which it was adopted."
10 CFR 5 2.758.
That new nuclear units, with their cost and environmental advantages, would be run as baseload units, possibly replacing old coal
- units, was a basic premise of the rule.
Given that premise, the In that regard, we agree with the Staff that we may consider the FES for the facility in judging environmental effects of its operation.
The FES concludes that those effects will not be significant (FES at 6-3),
and there is nothing in Mr. Eddleman's petition to call that conclusion into question.
]9 In this case some 3500 tO of coal-fired baseload capacity more than half the Applicants'aseload would have to be displaced by Mr. Eddleman's alternative before the purpose of the need for power rule might be deemed inapplicable.
Even assuming for the sake of argument Mr. Eddleman's claim that his alternative can displace 2600 M'll of electricity, and subtracting the capacity of the Harris unit it would displace, about half of the. Applicants'resent coal-fired capacity would still be needed.
"purpose" of the rule (within the meaning of Section 2.758) was to avoid pointless litigation about need for power projections and minor environmental effects where there was no realistic'rospect of tilting the NEPA cost/benefit balance.
That purpose is served by application of the rule in this case.
For the foregoing reasons, Mr.
Eddleman
's petition seeking waiver of the need for power rule is denied. 20 VE.
CONCLUSIONS OF LAW The environmental matters in controversy in this proceeding are limited to those raised by the Intervenors.
10 C.F.R. 5 2.760a.
As reflected in the oregoing findings of fact, each of those matters has now been resolved in favor of the Staff and the Applicants and against the lntervenors.
Based on those findings of fact, the Board concludes that as to all contested matters the Final Environmental Statemen. for the Harris facility satisfies the S.af,'s obligations under the National Environmental Policy Act.
We reject the Applicants'lternative argument that the petition was untimely.
LO C.F.R.
5 2.758 sets no time limit for filing petitioners for waiver.
Mr. Eddleman met the filing limit set by the Board, which was reasonable in the circumstances of this case.
VII. APPEALS
. Pursuant to 10 C.F.R. 55 2.760(a) and 2.762, an appeal from this Partial Initial Decision or from any prior Board Order granting a motion for summary disposition, in whole or in part, of an environmental contention or excluding a proposed environmental contention from litigation may be taken by filing a notice of appeal with the Atomic Safety and Licensing Appeal Board within 10 days after service of this decision.
A brief in support of an appeal must be filed within 30 days after the filing of the notice of appeal (40 days if the appellant is the NRC Staff).
Within 30 days after the period for filing and service of the briefs of all appellants has expired (40 days if the appellant is the NRC Staff), any other party may file a brief in support. of or in opposition to an appeal.
THE ATOMIC SAFETY AND LICENSING BOARD Ja L. Ke11ey, Chairman AD NISTRATIVE JUDGE Or James H. Carpe er, Member INISTRATIVE JUDGE a.8
'lenn
- 0. Bright, Member ADMINISTRATIVE JUDGE
- Bethesda, Maryland February 20, 1985 0
. Harr
- Foreman, ternate Member ADMINISTRATIVE JUDGE
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